As this story from the Daily Mail explains, a year (or so)
ago, T. Boone Pickens, Jr. and three of his children -- Elizabeth Cordia,
Pamela Pickens, and Thomas B. Pickens III – sued his son Michael O.
Pickens. Pickens v. Cordia, 2014 WL 2134540 (Texas Court of Appeals
2014). The plaintiffs in this lawsuit sued
Michael for invasion of privacy by
public disclosure of private facts, defamation, statutory libel, and
intentional infliction of emotional distress for remarks he published about
them on a blog. In addition, Pamela brought a separate claim for harmful access
by computer.
Pickens v. Cordia,
supra.
Michael then moved to dismiss the lawsuit under
chapter 27 of the Texas Civil Practice and Remedies Code. . . . The TCPA provides an expedited means for dismissing
actions involving the exercise of certain constitutional rights, including free
speech. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–.011.
. . . After a hearing, the trial court granted dismissal of the harmful access
by computer claim but denied dismissal of the remaining claims.
Pickens v. Cordia,
supra. I assume Michael filed his motion under §27.003(a) of the TCPA, which states that “[i]f a legal action is based on,
relates to, or is in response to a party's exercise of the right of free
speech, right to petition, or right of association, that party may file a
motion to dismiss the legal action.” The
opinion refers to T. Boone Pickens, Jr. and the three children who were
defendants in Michael’s suit as the “appellees”, and I will follow suit.
Michael appealed “the partial denial of his motion, and
Pamela cross-appeals the dismissal of her harmful access by computer claim. Pickens
v. Cordia, supra.
The Court of Appeals began its analysis of the parties’
arguments by noting that
Michael is a recovering drug addict
who, as an `interventionist,’ helps addicts `to get and stay clean.’ He also
writes a blog that he says has as its `primary theme’ his own `history of, and
then recovery from, substance addiction.’ This blog, `5 days in Connecticut,’
is the center of the claims in the lawsuit.
The
blog contains a number of posts. Many generally relate to Alina Lodge, where
Michael underwent inpatient treatment, include personal stories about Michael's
time at Alina Lodge, or address matters he learned while at Alina Lodge. Other
posts, including a seven-page entry entitled `My Story,’ relate personal
stories concerning Michael's upbringing, his family, his addiction, and his
recovery.
`My Story’ presented a critical picture
of Michael's father and his home life. Among other things, Michael's blog
portrayed his father as a fear-inducing, hateful person who `instigate[d]’
arguments with his children to get a `big win,’ used money to control people,
and subjected his children to `child abuse.’ As for his siblings, Michael said
none of them had been `successful in life’ and `[w]e have all struggled with
tremendously difficult lives, each defined by its own variety of downstream
wreckage, inherently the result of all child abuse.’ After detailing his years
of alcohol and drug abuse, he characterized the members of his `family of
origin’ as `all addicts.’
Pickens v. Cordia, supra.
According to the opinion, the appellees then sued Michael,
alleging he had invaded their privacy
and exposed them to ridicule, humiliation, and extreme embarrassment by posting
false statements about them on his blog. Pamela also alleged a claim for
harmful access by computer under section 143.001 of the Texas Civil Practice and Remedies Code.
Appellees later amended their petition
to add a claim for intentional infliction of emotional distress in which they
alleged Michael attempted to extort money from them. Specifically, [they]
alleged that shortly after they filed suit, Michael got word to [them] that he
was going to file affirmative claims against T. Boone and offered to settle the
suit for $20 million. When asked how he came to that number, Michael's attorney
said $17 million was for Michael's claims and $3 million was for Michael to
forgo giving an interview with D Magazine, writing a book, and
appearing on the Dr. Phil television program.
Appellees alleged Michael's attorney
represented that `paying $20 million would give [T. Boone] the opportunity to
avoid having his dirty laundry aired in public.’ They alleged `Mike's false and
defamatory statements, his invasion of [appellees'] privacy, and his
extortionate threat have caused [appellees] to suffer extreme emotional
distress and may have damaged their reputations.’
Pickens v. Cordia,
supra. As noted above, Michael moved to dismiss the
lawsuit, the trial judge dismissed Pamela’s “harmful access by computer” claim
and denied Michael’s motion as to the remaining claims. Pickens
v. Cordia, supra.
The Court of Appeals began its analysis with Michael’s
motion, noting that the
stated purpose of the TCPA is `to
encourage and safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to the maximum
extent permitted by law, and at the same time, protect the rights of a person
to file meritorious lawsuits for demonstrable injury.’ TEX. CIV. PRAC.
& REM.CODE ANN. § 27.002. . . . To promote these purposes, chapter 27
provides a means for expedited dismissal of unmeritorious suits that are based
on, related to, or in response to a party's exercise of free speech. Id. §
27.003(a). The statute is to be `construed liberally to effectuate its purpose
and intent fully.’ Id. § 27.011(b).
To
prevail on a motion to dismiss, the movant bears the initial burden to show by
a preponderance of the evidence that the action `is based on, relates to, or is
in response to the party's exercise’ of free speech. Id. §
27.005(b)(1). The `exercise of free speech’ is defined as a `communication made
in connection with a matter of public concern.’ Id. §
27.001(3). As relevant to this appeal, a `matter of public concern’ includes an
issue related to (1) health and safety, (2) community well-being, and (3) a
public figure. Id. § 27.001(7)(A), (B), (D). If the movant
satisfies this burden, then the trial court must dismiss the action unless the
party who brought the action `establishes by clear and specific evidence a
prima facie case for each essential element of the claim in question.’ Id. §
27.005(c).
Pickens v. Cordia,
supra.
The court began with “whether Michael met his burden of
proving by a preponderance of the evidence that appellees' action is based on,
related to, or in response to his exercise of free speech.” Pickens
v. Cordia, supra. Michael claimed his blog concerned issues
related to `addiction, parental abuse,
fathers' responsibilities to their children and family dynamics,’ all of which
he contends relate to health and safety and community well-being. In addition
to a copy of his blog, he relies on news articles concerning the death of his
nephew, Ty, of a possible heroin overdose; an internet article on the
definition of addiction from the American Society of Addiction Medicine; a
Science Daily internet article entitled “Prescription Drug Misuse Remains a Top
Public Health Concern”; and an article from the Texas Department of Family and
Protective Services regarding the importance of a father to a family.
Pickens v. Cordia,
supra.
The Court of Appeals “agree that issues of `addiction,
parental abuse, fathers' responsibilities to their children and family
dynamics’ generally may be matters of public concern,” but found that Michael’s
blog
is not a general purveyor of
information on those subjects. Rather, Michael's blog is akin to a personal
diary of his journey from drug addiction to recovery in which he draws upon his
perceived family experiences as an explanation for his addiction. Its primary
focus is Michael. As his brief explains, his blog contains stories that `generally
concern the historical events that have shaped his behavior and made him
ultimately into the person he is today, revealing his own trial and
tribulations.’
And it is just that—a personal account
of his life, from his own perspective, in which he also makes remarks about his
family members that they contend are false and defamatory. We cannot conclude
that statements of private life, such as those recounted in Michael's blog,
implicate the broader health and safety concerns or community well-being
concerns contemplated by chapter 27.
Pickens v. Cordia,
supra.
Michael also argued that his blog related to a “matter of
public concern” because it
includes his comments on public
figures. The statute does not define public figure, but there are numerous
cases addressing this issue in the defamation context. Public figures fall into
two categories: (1) all-purpose, or general-purpose, public figures, and (2) limited-purpose
public figures. WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571
(Texas Supreme Court 1998). General-purpose public figures are those
individuals who have achieved such pervasive fame or notoriety that they become
public figures for all purposes and in all contexts. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). Limited-purpose public
figures are only public figures for a limited range of issues surrounding a
public controversy. Id. Michael argues his father and brother,
T. Boone and Thomas, are both general-purpose public figures.
The
rationale behind the public figure doctrine is that the public figure has
reached such a level of prominence in the affairs of society that he is risking
or inviting the spotlight of public attention and comment, or that he is
attempting to influence resolution of issues involved in the controversy. See Time,
Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch,
Inc., supra. A person becomes a general-purpose public figure only if he is
a `well-known “celebrity,” his name a “household word.”’ Waldbaum v.
Fairchild Publ'ns, Inc., 627 F.2d 1287 (U.S. Court of Appeals for the District of Columbia Circuit 1980). He must have `assumed a role of especial
prominence in the affairs of society.’ Waldbaum
v. Fairchild Publ’ns, Inc., supra.
`The public recognizes him and follows
his words and deeds, either because it regards his ideas, conduct, or judgment
worthy of its attention or because he actively pursues that consideration.’ Id. Public
figures are frequently so famous that they `may be able to transfer their
recognition and influence from one field to another.’ Id. n.
15 . . . . ; see Tavoulareas v. Piro, 817 F.2d 762 (U.S.Court of Appeals for the District of Columbia Circuit 1987) (en banc). Consequently,
it is reasonable to `attribute a public character to all aspects of their
lives.’ Tavoulareas v. Piro, supra.
Pickens v. Cordia,
supra.
Michael’s evidence that his brother Thomas was a
general-purpose public figure was
a one-paragraph `Frontburner’ article
published in D Magazine entitled, `T. Boone Pickens' Son
Proves That His Father's Name Will Be Used In All Headlines Written About His
Children's (Alleged) Misdeeds’ and an article published in the Courthouse News
Service detailing a civil suit against Thomas alleging company mismanagement.
This evidence shows only that Thomas had been sued for conduct unrelated to any
of the allegations in this lawsuit.
Nothing about this evidence shows
Thomas is sufficiently famous or notorious to justify being treated as a public
figure for all purposes nor does it show he has assumed any prominence with
respect to any public controversy that allows him to be considered a public
figure for limited purposes.
Pickens v. Cordia,
supra.
As to his father’s status as a public figure, Michael relied
on the following evidence:
(1) an internet feature article on T.
Boone from upstart.bizjournals.com, originally published in the May 2007Conde
Nast Portfolio magazine, in a section entitled `Fortune Hunter’; (2)
an internet screen print from a Google search for `t. Boone Pickens’ showing
`[a]bout 10,800,000 results’; (3) a page from
www.forbes.com/profile/t-boone-pickens/ showing Pickens's net worth; (4) a
three-paragraph article from www.businessweek.com by Pickens, entitled, `How to
Convert the Country to Natural Gas’; (5) a June 25, 2008 article from the caucus.blogs.nytimes.com
entitled, `T. Boone Pickens Says No Deal on Swift Boat Bounty,’ recounting
Pickens's offer to `pay anyone’ who could disprove accusations by the Swift
Boat Veterans for Truth against then presidential candidate John Kerry; and (6)
an internet page from www.pickensplan.com, entitled `America is addicted to
OPEC oil.’
Pickens v. Cordia,
supra.
The Court of Appeals was not persuaded, noting that Michael
argued that these items
`show the general public interest’ in his father. Our
review suggests the evidence presented by Michael shows the public interest in
T. Boone arises from his connections and opinions in the energy industry. While
we acknowledge the Google search contained a vast number of results, a number
alone cannot establish public-figure status. The only evidence relating to the
content of the Google results is captured in a single page showing a wikipedia
entry, T. Boone's website, the Pickens Plan website, the Forbes listing, the
website for T. Boone's foundation, his Twitter account, two articles about this
lawsuit, two articles about his grandson's death, and two energy-related
articles.
Other than the articles on his
grandson's death, these entries relate to T. Boone's social media account,
business websites, and his involvement in energy issues. Thus, while the
evidence shows some previous coverage regarding T. Boone outside the business
world, we cannot conclude Michael has made the necessary statutory showing to
establish the kind of prominence associated with general-purpose public
figures.
Pickens v. Cordia,
supra.
The court also noted that “[a]t best,” the evidence
presented suggested that
T. Boone could be a limited-purpose
public figure. Limited-purpose public figures achieve their status by`thrusting
themselves to the forefront of particular public controversies in order to
influence the resolution of the issues involved” or because they “voluntarily
inject [themselves] or [are] drawn into a particular public controversy.’ Gertz
v. Robert Welch, Inc., supra. The evidence presented by Michael shows T.
Boone has put himself in the forefront of issues related to energy.
The allegations in this lawsuit,
however, have nothing to do with an energy controversy. We conclude Michael has
not met his statutory burden to establish his blog relates to health, safety,
or community well-being, nor has he met his statutory burden to show that T.
Boone and Thomas are public figures.
Pickens v. Cordia,
supra. The court therefore held that the trial judge
did not err in denying Michael’s motion on the appellees’ claims or invasion of
privacy, defamation, libel, and intentional infliction of emotional distress. Pickens
v. Cordia, supra.
The Court of Appeals then took up Pamela’s argument that the
judge erred in dismissing “claim for violation of section 143.001 of the
Texas Civil Practice and Remedies Code for harmful access by computer.” Pickens
v. Cordia, supra. It noted that § 143.001 creates
a statutory cause of action for a
person who is injured or whose property is injured as a result of a violation
of chapter 33 of the Texas Penal Code, if the conduct constituting the
violation was committed knowingly or intentionally. TEX. CIV. PRAC. & REM. CODE ANN. § 143.001. The petition pleaded a cause of action under
section 33.07(b).
In her brief, Pamela asserts she sued
Michael based on an email that she had reason to believe Michael sent, using
the name Robert Barris, to her business associates, to the CEO and COO of her
employer, Morgan Stanley, and to the California Securities Commission, that was
critical of Pamela and accused her of using her `mother's woes’ to `drum up
business.’
Pickens v. Cordia,
supra. At the hearing the trial judge held on the
motion to dismiss,
Pamela's counsel told the trial court
he took limited discovery and that Michael had denied sending the email or
using the name Robert Barris. Counsel also told the trial court that Pamela did
not have evidence that Robert Barris is Michael, other than circumstantial
evidence. Counsel told the court one of the elements that Pamela must prove is
that the `real Robert Barris’ did not consent to the sending of the email. The
trial court granted Michael's motion to dismiss the claim.
Pickens v. Cordia,
supra.
The Court of Appeals explained that, on appeal, Pamela
argued that since Michael
denied sending the email, there can be
no evidence the lawsuit was related to Michael's exercise of free speech and no
chapter 27 basis for dismissing the claim. We agree. Michael's motion to
dismiss is premised on the notion that one purpose of chapter 27 is to `encourage
and safeguard the constitutional rights of persons to speak freely.’ Given that
he has denied sending the email, we conclude chapter 27 does not apply to this
cause of action.
We also reject Michael's assertion that
any error in dismissing the claim was `harmless’ because he denied using Robert
Barris's name and Pamela did not have evidence to refute his denial through the
limited discovery that had been done. We cannot agree. First, given Michael's
denial, the statute does not encompass the claim. Second, Pamela should have
the opportunity to uncover the identity of Robert Barris and the sender of the
email through discovery. We sustain Pamela's issue.
Pickens v. Cordia,
supra.
The Court of Appeals therefore reversed “the trial court's
order to the extent it dismisses Pamela's claim for harmful access by computer
and remand that claim to the trial court for further proceedings consistent
with the opinion.” Pickens v. Cordia, supra. It affirmed the trial court’s order “in all
other respects.” Pickens v. Cordia, supra.
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